One of the effects of the Covid-19 pandemic was that almost overnight lawyers found themselves having to conduct remote hearings for the first time. Lawyers had very little time to adapt, as evidenced by the advocate who found himself appearing in court behind a kitten filter, and having to assure the court that he was not a cat.
When Emily Windsor, barrister and former judge, began her barrister career at Falcon Chambers, the notion that advocates would one day conduct remote hearings from their home offices would have seemed fanciful. “Back then, we had paper practices”. But recent technological advances have transformed legal practice.
Having steered through the seismic shift from traditional courtroom advocacy to the digital forum, Windsor shares her thoughts on the skills that can transform remote hearings from technological ordeals into opportunities for compelling advocacy.
Check that the matter is appropriate for a Remote Hearing
Emily Windsor advises practitioners to be strategic about which matters they recommend for remote hearings. Clearly, remote hearings can generate huge time and costs savings for the parties, particularly where participants would otherwise need to travel significant distances for brief appearances. However, certain hearing types consistently perform better in virtual environments. “Short hearings, one- or two-hour hearings, and case management hearings, things not involving witnesses work very well online a lot of the time,” she notes. “Hearings involving live witness evidence, much less so. Some witnesses can struggle with the technology or the bundles, and it is much harder to help them in this hearing format”.
Even in cases not involving live witnesses, it is important that a hearing should be well-prepared, and prepared in good time, if it is to be conducted online. The opportunities for document-sharing are much more limited than in a traditional courtroom setting.
Technical Execution and Environmental Optimisation
Technical readiness, Emily Windsor points out, is a key component of remote advocacy. “You don’t want to be in a situation where you’re fumbling with the technology while trying to make legal arguments,” she advises. “Technical competence is now part of professional competence.” Windsor shares five prep tips that can nip issues in the bud before they occur:
1. Begin by auditing your internet connection reliability.
Conduct speed tests at the same time of day as scheduled hearings, as neighbourhood usage patterns can affect performance. Windsor recommends having a backup connection option readily available — a mobile hotspot with sufficient data allowance can provide essential redundancy. It is also vital to test the platform you will be using prior to the hearing – and for this purpose, platform testing instructions are often sent in advance. If you have not done this, it may delay or disrupt the hearing.
2. Invest in appropriate audio equipment.
“Clear audio is actually more important than perfect video,” she says. “Judges can tolerate video glitches, but if they can’t hear submissions clearly, the hearing becomes impossible.” A dedicated external microphone provides superior sound quality to built-in laptop microphones. Position it appropriately — typically 6-12 inches from your mouth — and test for optimal volume levels.
3. Establish a dedicated hearing space with controlled lighting and acoustics.
Position your primary light source in front of you, not behind, to avoid silhouetting effects that obscure facial expressions. Supplement natural light with consistent artificial lighting to prevent fluctuations as weather conditions change. Improving audio quality can be as simple as adding soft furnishings to reduce echo; even makeshift solutions like hanging blankets can help during key hearings.
4. Develop a systematic approach to document management and presentation.
“Having your papers well organised is even more crucial in remote hearings,” Emily Windsor observes. Standardise your electronic filing system to enable rapid document retrieval. Windsor tends to maintain multiple navigation methods — both the electronic bundle’s internal hyperlinks and her own system of favourites or shortcuts — to provide redundancy if technical issues arise with one method.
5. Master the relevant screen-sharing functions of your platform.
Practice using annotation tools to highlight specific passages and develop keyboard shortcuts for navigating between frequently referenced materials. Consider preparing a separate document containing just the key extracts you intend to reference, enabling quicker transitions without searching through comprehensive bundles, or a paper back-up.
6. Dial in early
Log into the call 10 minutes ahead of time. Even if you are confident in your IT, glitches do happen on the day, particularly with the court-specific video platforms used by certain courts.
Adapting Advocacy Techniques for Maximum Impact
The virtual environment fundamentally alters how advocacy is received and processed by the court. Emily Windsor suggests several practical adjustments to traditional techniques to maximise effectiveness in this medium.
First, take any steps you can to avoid disturbance by colleagues and outside noise. For example, many advocates place a “do not disturb sign” outside their rooms.
Second, do not forget to mute your microphone when you are not speaking, so that the hearing is not disturbed by background noise or feedback.
Third, barristers should adjust visual presentations to accommodate the limitations of video framing. Position your camera at eye level to create the most natural approximation of in-person eye contact. When making key points, look directly at the camera rather than at the judge’s image on your screen. This creates the impression of direct engagement despite the technological mediation. A small minority of barristers choose to stand up during submissions if their setup allows – believing that this can improve posture, breathing, and vocal projection.
Fourth, try to recalibrate your speaking pace and rhythm. “The slight transmission delay in video platforms can make rapid delivery seem rushed or unclear,” she notes. Deliberately slow your normal speaking pace slightly, and incorporate more definitive pauses between distinct points. This adjustment compensates for latency issues while giving the judge clear opportunities to interject with questions or clarifications.
Fifth, use more explicit signposting in submissions. The physical disconnection of remote hearings can make it harder for judges to track complex or badly-structured arguments. Begin each segment with clear structural indicators. For example, Windsor suggests: “I will address three points on this issue. The first point is ….” This framework helps maintain engagement and clarity despite the physical distance.
Related to this is the need to develop a more deliberate citation methods than might be used in a live courtroom. “When referring to authorities or evidence, you need to be extremely precise about directing the court’s attention,” Emily Windsor advises. You must clearly signpost what you are asking the judge to read, and be alert to any pagination inconsistencies between the electronic bundles and the paper bundles.
Sixth, one distinct feature of remote advocacy is that you must arrange with your clients in advance what the channel of communication will be, which is usually email dialogue, but occasionally WhatsApp. You cannot simply turn around for instructions on the day, as you would in a traditional court setting.
Finally, prepare contingency protocols for technical disruptions. Establish at the outset of the hearing how interruptions will be handled, and how the parties will communicate with each other and the court in the event that the technology fails.
